I read with great interest the newspaper report on comments made by Court of Appeal Justice John Muir in his recent address to the North Queensland branch of the Bar Association’s biannual Court of Appeal dinner in Townsville.

The headline read “‘Stand down’ Carmody call – Judge adds to scathing responses” but, while I wasn’t there and didn’t hear what John Muir had to say, I wonder if that headline may have missed something of the subtlety of the current debate. My conversations with many of my colleagues in legal circles suggest that the sting in this debate has a great deal less to do with anyone’s opinion of Tim Carmody QC than with a deep disquiet felt by many lawyers over the current government’s apparent inclination to ignore convention for the sake of the political expedience.

Back in the heady days of Sir Joh Bjelke Petersen’s reign as Premier a similar controversy arose when Sir Joh’s government ignored all recommendations and expectations in passing over the generally perceived number one candidate for a high judicial appointment in favour of another lawyer thought to be more sympathetic to the government. As I recall it at the time, many senior lawyers thought that appointment had a huge smell under it, but they mostly ignored the apparently politically motivated break with convention, and just got on with life. For his part the judge who was appointed got on with the job, and made a fair fist of it.

But the controversy became part of a general disquiet that the government was out of control, ultimately leading to bigger questions being asked, many of which were eventually answered in the infamous Fitzgerald Enquiry in the late 1980s. None of those answers, I should say, reflected in any way on the character or performance of the judicial appointment in question. But I suspect there are a lot of senior lawyers who, in the context of the current debate, are revisiting that long forgotten sense of disquiet, hoping that if there is to be another Fitzgerald-type Inquiry in another 20 years or so, history will not reflect poorly on their current inaction.

It seems to me one very sad product of all this hoo-haa is that it has the potential to unfairly detract from the reputation of Tim Carmody QC. I’m confident that any lawyer who like myself has had a little bit to do with Tim over the years would readily attest he’s both a very nice man and a very good lawyer. True it may be that few in the legal world would have picked him as the next Chief Justice, but that certainly doesn’t reflect on either his character or his competence. I’m quite sure the concerns currently being expressed by people like Justice John Muir, Tony Fitzgerald QC, and Peter Davis QC have nothing to do with any personal disapproval by any of them of Mr Carmody, or even necessarily with a view that he would not do a good job as Chief Justice, but simply evidence their perception that his appointment signals a government that is happy to ride roughshod over accepted convention and practice to impose its will, without proper consultation and deliberation.

Are such concerns justified? I’ll leave that to be answered by others, but in the meantime I think it worth remembering and underscoring the point that this debate is all about the process, not the person.

Chris Nyst – Gold Coast Lawyer, Novelist and Film Maker